United States Court of International Trade

Slip. Op. 21-154

Before the court in Solar Energy Industries Association, et. al., v. United States, et. al., Court No. 20-03941, Slip. Op. 21-154 (November 16, 2021) was Plaintiffs’ challenge against “Presidential Proclamation 10101, which withdrew the exclusion of bifacial solar panels from Section 201 safeguards on imported crystalline silicon photovoltaic (“CSPV”) solar panels.” Id. at 3. Plaintiffs alleged that Proclamation 10101 violated Sections 201, 203 and 204 of the Trade Act and sought both a declaratory judgment that the proclamation is unlawful and the injunction of its enforcement. Id. at 4. The Government moved to dismiss Plaintiffs’ complaint and Plaintiffs opposed that motion. Id. Plaintiffs moved separately for summary judgment, and the Government opposed Plaintiffs’ motion. Id. For the following reasons, the court granted Plaintiffs’ motion for summary judgment and denied the Government’s motion to dismiss. Id.

The court may review Presidential action pursuant to Section 201, insofar as it gives rise to a controversy involving international trade and foreign affairs, for a “clear misconstruction of the governing statute, a significant procedural violation, or action outside delegated authority.” Id. at 9. This case raised a number of questions regarding the interface of Proclamation 10101 with Sections 201–204 of the Trade Act: (1) Do three letters (reflecting a majority of the domestic industry production) which seek the modification of safeguards constitute a petition as required by statute? (2) Is the requirement that a petition be submitted to the President satisfied by submission to the United States Trade Representative (“USTR”)? (3) Does the Proclamation’s withdrawal of the exclusion for bifacial modules violate the statutory temporal restrictions which must be met before new presidential action may be taken? (4) Was Proclamation 10101 issued in violation of the requirement that the President determine that an action will “provide greater economic and social benefits than costs”? (5) Can the word “modify” in Section 204(b)(1)(B) be read to permit increased restrictions on trade? Id. at 3. In this case, the court concluded that with respect to the first four questions, the answer was “Yes.” Id. With respect to the fifth question, the answer was “No.” Id. Here, the court concluded that “the various procedural challenges posed by Plaintiffs to Proclamation 10101 are unpersuasive.” Id. at 4. “The Government prevails on the questions of procedural compliance — the form, contents, and timing of the petition, as well as the President’s assessment of costs and benefits.” Id. at 10. However, the court also concluded that “because Section 204(b)(1)(B) permits only trade-liberalizing modifications to existing safeguard measures, Proclamation 10101’s withdrawal of the exclusion of bifacial solar panels and increase of the safeguard duties on CSPV modules constituted both a clear misconstruction of the statute and action outside the President’s delegated authority.” Id. at 4. “Proclamation 10101 ultimately fails to comply with the substantive requirements of Section 204(b)(1)(B) of the Trade Act.” Id. at 10. As such, the court granted Plaintiffs’ motion for summary judgment and denied the Government’s motion to dismiss. Id. at 32.